With unemployment still high, hiring managers feel free to be choosy

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A man smokes a cigarette outside a building in New York. Some hiring managers are excluding smokers, the unemployed, people with accents or non-traditional hair styles, college dropouts and those with bad credit.

There are roughly five applicants for every job opening these days, and that means employers can be picky if they want.

It turns out some are very picky.

When the help-wanted signs go up, the openings increasingly are including requirements that go beyond mere job qualifications. Some hiring managers are routinely excluding the unemployed, smokers, people with accents or non-traditional hair styles, college dropouts, and anyone with bad credit.

“It’s a buyer’s market,” said Stephen Bronars, an economist with Welch Consulting, a labor and employment consultancy. “Companies are inundated with applications, especially since it’s so easy to apply for jobs online,” Bronars said.

As a result, employers are finding a host of ways to narrow the pool of applicants, and sometimes that means you may be cut from consideration based on factors that aren’t even relevant to your resume. The random nature of a lot of these hiring bans may be frustrating, but it’s par for the course in this tough labor market, said Lewis Maltby, president of the National Workrights Institute, which advocates for workers.

“I’ve had HR managers tell me they know a job doesn’t require a college degree but they’re using that to kick the resumes down to a manageable pile,” Maltby said. “It’s making their lives easier.”

Clearly, a hiring manager can’t refuse to hire an individual based on gender, race or religion because he or she would be breaking the nation’s labor laws. But it’s not always clear whether many recent restrictions on hiring that have become more prevalent are legal or not.

One particular prerequisite that has distressed some job seekers and regulators is the move by some employers to blatantly state they won’t consider applicants who are jobless.

“We have seen an increase in postings by employers that are targeting employed people, otherwise known as ‘passive candidates,’” said Daniel Greenberg, chief marketing officer for Simply Hired, a job search engine.

“We have heard people say that ‘anyone that was able to weather the recession and hold onto their job has been thoroughly vetted by their employer.’ It’s unfortunate that some share this sentiment given our record unemployment numbers.”

The Equal Employment Opportunity Commission is so concerned with the practice that it is reviewing it to determine whether it is discriminatory. Some states have been taking matters into their own hands. In New Jersey, for example, a bill was introduced late last year that would make such bans on hiring the jobless illegal. But the EEOC’s move is one of the first taking up the issue on a national front.

An employer’s decision “to bar unemployed applicants could create an unlawful barrier to employment and could be exacerbated by the effect of the ongoing difficult economic conditions, further deepening the nation’s unemployment crisis,” said Christine Nazer, an EEOC spokeswoman.

Another hiring practice that the EEOC has been concerned about is the growing use of credit background checks on employees, even those who are not in the financial sector, or have no dealings with money at work. About 60 percent of companies now do such credit screenings, but regulators have argued they could hurt certain job seekers more than others.

Several states are pondering legislation to stop such pre-employment screenings. A bill was reintroduced this year in Congress that could limit the use of credit checks on job seekers, but labor advocates aren’t hopeful a national moratorium on the practice will be seen in this session.

While there’s a movement to outlaw hiring decisions based on employment or credit status, there are a host of other hiring bans that seem to be more acceptable, at least legally.

It’s easy to find a host of job listings on almost any job board that state: “No smokers please.” While many offices and factories have long had bans on smoking at work, more and more employers are choosing not to hire smokers because of the health costs related to illnesses that result from smoking.

“Smoking is not a legally protected characteristic that would prevent an employer from turning away smoker applicants,” said Truth Fisher, a senior counsel at Gordon & Rees, a national law firm.

But, she added, “Employers should be particularly careful when it comes to pre-employment inquiries for purposes of determining who is a smoker. Such inquiries could possibly lead to ‘lifestyle intrusion’ or other invasion-of-privacy claims, especially if the smoking is done off-duty, or outside of working hours.”

There are also 29 states that have laws on the books allowing workers to sue an employer if they’re denied a job because they are smokers, said Maltby.

“But in the rest, there’s nothing you can do about it,” he added.

Another hiring consideration that’s getting more weight lately is the way job applicants groom themselves.

“When you get to the point of an interview there is no doubt in my mind that appearances are going to matter,” said Welch’s Bronars.

One case involves a woman named Jackie Sherrill who worked at Six Flags amusement park during the summer season last year and wore dreadlocks to work, according to a story on ABC News. But when Sherrill was asked to return to work at the park this summer her supervisor said she’d have to change her hairstyle, even though she hadn’t changed her hairstyle from the previous year.

When asked by msnbc.com if Six Flags’ grooming policies had become more strict, Sandra Daniels, a spokeswoman for the amusement park company, would only say that “the policy, which is [an] industry standard, has been in place for a number of years.”

The hospitality industry has always had its hiring restrictions, but there are more than ever today, given the huge applicant pool, said Beth Schroeder, a partner in the employment law department at Silver & Freedman in Los Angeles.

Appearance is always a big consideration in the industry, she continued, and so is personal hygiene because workers are often dealing with food, but a recent trend she has seen is where more employers are shying away from hiring people with heavy accents.

“They can be picky about people and they want them to be better communicators,” Schroeder maintained.

If an employer isn’t denying employment to a particular race or ethnic group because of such a ban, labor experts said, then such a practice may not run afoul of the law.

The National Workrights Institute’s Maltby suggested job seekers find out ahead of time what a particular employer’s rules are. Job seekers should also find out what their rights are and write to their legislators if they are upset about practices such as credit background checks.